In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Her full bio follows below:

Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton. From 2005-2015, she was Director of the Program in Law and Public Affairs at Princeton, after 10 years on the faculty of the University of Pennsylvania Law School. Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress. After 1989, Scheppele studied the emergence of constitutional law in Hungary and Russia, living in both places for extended periods. After 9/11, she researched the effects of the international “war on terror” on constitutional protections around the world. Since 2010, she has been documenting the rise of autocratic legalism in first Hungary and then Poland within the European Union. Her many publications in law reviews, in social science journals and in many languages cover these topics and others. She is a commentator in the popular press, discussing comparative constitutional law, the state of Europe, and the rise of populism. Scheppele is an elected member of the American Academy of Arts and Sciences and the International Academy of Comparative Law. In 2014, she received the Law and Society Association’s Kalven Prize for influential scholarship. She held tenure in the political science department at the University of Michigan, was the founding director of the gender program at Central European University Budapest and has taught in the law schools at Michigan, Yale, Harvard, Erasmus/Rotterdam, and Humboldt/Berlin. From 2017-2019, she will serve as the elected President of the Law and Society Association.

1. Tell us about something you are working on right now.

I’m working on two interconnected book projects. One, called Counter-Constitutions, is rather improbably about phenomenology and Hungary. The book argues that constitutions are imperiled when their key principles fail to be taken for granted and it shows how justificatory failures open the way for constitutional collapse. Phenomenology is relevant to this inquiry because it has the most sophisticated account of how a “social stock of knowledge” is collectively produced so that it comes to feel real, and how precarious that reality becomes when it loses its social support. Hungary is the perfect case study to illustrate how a phenomenological theory of constitutionalism works, because it has had two major constitutional revolutions in 25 years. The book is written so you can read the theory without the cases or the cases without the theory in case readers aren’t interested in both.

The other book project, Autocratic Legalism, examines the rise of a new breed of autocrat who comes to power in a liberal constitutional democracy by winning an election fair and square and then who deconstructs the constitutional system that allowed his rise to power. The book focuses on backsliding constitutional democracies and shows how the new autocrats deploy phalanxes of lawyers rather than phalanxes of soldiers to disarm constitutionalism. I trace particular tools and their uses across autocratic regimes of very different ideological stripes.

And then I’m trying to fix problems in the EU by proposing ways for the European Commission to deal with backsliding states through systemic infringement actions and by suggesting some unconventional solutions to Brexit.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I’ve always thought I should have a routine, but I don’t. I write in binges when there are deadlines, as do most of us, I suppose. But I also stop and start, stop and start, make no progress at all for a while, and then write a huge flurry of words all at once. When I know what I want to say, I write fast. When I am still figuring things out, it’s hard to know where to start. So I percolate ideas for quite a while during which it’s hard to get much writing done, and then I typically binge-write my way to the finish line.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new?

Perhaps it is a sacrilege to say so, but I am an obsessive consumer of news even more than an obsessive consumer of scholarship. I read at least a dozen news sites in multiple languages each day trying to get a sense for current events. I also read smart journalism, academic listservs, primary sources (new cases, white papers, expert reports, legal analyses), that deal with real-time events. I’m also an obsessive reader of blogs – law blogs, news blogs, academic blogs. I rarely start with “the scholarly literature” and look for gaps to be filled because, by the time that a literature develops, the events in the world that triggered that literature have long since ceased to be current. I love the thrill of engagement with ongoing events, probably not surprising given that I started my career as a journalist. As a result, I tend to write and teach about things that no one is working on (yet). By the time that “the literature” catches up to what I’m doing, I’m usually onto something else. I read those literatures appreciatively, of course, because they often approach these questions more systematically and with benefit of a longer time for reflection. But I like working in relatively empty fields before others figure out how interesting they are.

That said, I do have a long list of authors whose work I read as soon as I see it, but I stop reading authors who write too much or who start to repeat themselves. I am always scanning the academic horizon for new authors with a perspective I haven’t encountered before. And I read a lot of history, as well as academic scholarship from other decades and centuries.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

My PhD is in sociology and I was very influenced by my teachers and their writings: Robert Merton, Herbert Gans and Guillermina Jasso (my undergraduate advisors) and Arthur Stinchcombe, Edward Shils and James Coleman (my dissertation committee). I learned to argue about law with Richard Posner (who also served on my dissertation committee) but my theoretical approach to law was most shaped by Brian Simpson, whose course in jurisprudence combined philosophy with history and anthropology and whose writings continue to be an inspiration. As for particular texts that I first encountered while a student and that continue to be touchstones for my scholarship apart from those of my direct teachers, I would list Karl Llewellyn’s Bramble Bush and Clifford Geertz’s essay “Local Knowledge.” Oh yes, and Ludwig Wittgenstein’s Philosophical Investigations and Alfred Schütz’s Phenomenology of the Social World. Somehow many of my key inspirational texts were written in the 1930s, a period that also informs my current scholarship on constitutional collapse.

5. What are some of the big questions ripe for inquiry in your area of research interest?

We still don’t understand well enough how law becomes real. By that, I mean that we don’t understand how law goes from words on paper to practices in the world. Similarly, we don’t understand how practices in the world reinforce or undermine structures of legality. There is a disciplinary dividing line between lawyers’ law (doctrine) and social scientists’ understandings of society which tends to focus on action and almost never include study of the legal concepts and categories through which people learn to perceive the world. I think we need to blur that line and study questions like: How do constitutions emerge and collapse? How do legal ideas emerge from non-expert concepts? How does law “constitute” institutions, offices, norms and the people who inhabit them? How is “the political” differentiated from “the legal” in particular times and places? If we see law as a field of knowledge and social action as based on the concepts and categories through which people understand the world, law and social sciences can inspire each other more.

On March 15 of this year, the Supreme Court of Japan issued a rare decision that limits the authority of the police to conduct surveillance operations. The case involved the placement of GPS tracking devices on the vehicles of surveillance targets. According to the published Supreme Court opinion,[1] for a six and a half month period that commenced in May 2013 police investigators placed GPS tracking devices on no fewer than 19 vehicles used by the target of the investigation, accomplices, and acquaintances.

The appellant was found guilty by both the district court and intermediate appellate court prior to his Supreme Court appeal, but the decisions of those two courts were distinguished by their rulings on the issue of GPS surveillance. According to the District Court, police must obtain a judicial warrant to authorize their use of GPS tracking.[2] The District Court excluded the GPS data from consideration, but nonetheless convicted the defendant on other evidence. The High Court disagreed, stating that at the time of the investigation, Japan’s courts had not established clear precedents requiring warrants and therefore the police action did not rise to a level of illegality sufficient to require the GPS evidence to be excluded from consideration.

The unanimous ruling by all 15 justices upheld the guilty verdict, but unequivocally overturned the High Court regarding the legality of GPS surveillance.

In a key passage the Court explained:

Because this kind of investigative method inevitably enables (the police) to grasp the continuous and comprehensive acts of an individual, it can violate the privacy of that individual; moreover, because this kind of violation is made possible by the secret installation of a device on individual property, it differs from methods such as observing an individual’s location on public streets by the naked eye or through photography. We must say that it involves penetration of private space by public authority.

The Court followed by issuing a historic interpretation of critical language in Constitution Article 35, which protects individual rights “to be secure in their homes, papers and effects against entries, searches and seizures.” The Court stated that this protection extends not only to “homes, papers, and effects,” but also protects against “entries” to other private areas (korera ni junzuru shiteki ryōiki). Professor Makoto Ibusuki quickly declared that a new legal term, shiteki ryōiki or “private space” was born. Illustrated by placement of GPS devices on vehicles, this private space is not limited to homes and other buildings, but includes vehicles which can move about in a broader public space. Professor Ibusuki labelled the decision epochmaking (kakkiteki) and expressed the hope that the concept might be expanded in future decisions.[3]

In cases like the present where it can be presumed that the police action was taken against the will of the target, the Court explained that in the light of the “important legal interests protected by the Constitution,” unless there is a specific provision of the criminal procedure law, it constitutes a “compulsory action” (kyōsei shobun) which requires the police to obtain a judicial warrant. Because there is currently no specific provision in Japan’s criminal procedure law authorizing such warrants, the effect of this decision is to prohibit the use of GPS tracking. The Court effectively lobbed the ball into the legislative court. If Japan’s police really need GPS tracking, the Court suggested they must persuade the Diet to pass a new statute, much like the wiretapping law.[4]

Despite the Court’s rejection of the police efforts to employ GPS without warrants, observers concerned about excessive police surveillance may find little comfort in the GPS decision. The Court was careful to distinguish the placement of GPS devices from other common surveillance techniques; in the Court’s words “it differs from methods such as observing an individual’s location on public streets by the naked eye or through photography.” Police use of camera surveillance has been exposed in several cases. The most noteworthy concerns comprehensive police surveillance of Muslims.[5] Just last year the Supreme Court upheld lower court rulings approving surveillance of an entire community based on religious affiliation, without any evidence of wrongdoing. There have been other recent cases that suggest such police surveillance may be employed for political purposes.[6]

Note: All translations were made by the author and unless otherwise noted, all material cited is in Japanese.

Constitution

Article 35. The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33.

Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.

[6] E.g., “Hidden cameras on the grounds of an office connected to the Minshinto” (kakushi camera, “minshintō” kanren tatemono shikinai ni), Mainichi Shimbun, Aug. 3, 2016. (Police surveillance cameras recorded persons entering the offices of an opposition political party during an election period in Oita prefecture in 2016.) E.g., “If the bill passes, increased surveillance is certain” (hōan seiritsu nara, kanshi no kyōka kakujitsu), Tokyo Shimbun, Feb. 4, 2017. (Police surveilled a local citizens group that demonstrated against a proposed wind farm and delivered dossiers on the activists to a subsidiary of Chubu Electric, the power company behind the project.) There are other published reports on surveillance by the Self-Defense Forces and the Public Security Intelligence Agency. Regarding the latter, see Lawrence Repeta, “Japan’s Bar Associations and Human Rights Protection,” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917524 (English).

]]>http://www.iconnectblog.com/2017/08/japan-supreme-court-limits-police-gps-surveillance-citing-constitution-article-35/feed/0Developments in German Constitutional Law: The Year 2016 in Reviewhttp://www.iconnectblog.com/2017/08/developments-germany-2016/
http://www.iconnectblog.com/2017/08/developments-germany-2016/#respondTue, 15 Aug 2017 06:36:01 +0000http://www.iconnectblog.com/?p=6437

Editor’s Note: Today we publish the 2016 report on German constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law. The entire 2016 Global Review is now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.

—Christoph Möllers, Professor of Public Law and Legal Philosophy at Humboldt-Universität zu Berlin and Permanent Fellow at the Institute for Advanced Study, and Thomas Wischmeyer, Senior Research Fellow at the Institute for Staatswissenschaft and Legal Philosophy at Albert-Ludwigs-Universität Freiburg and Emile Noël Fellow at NYU School of Law

I. Introduction

In 2016, constitutionalism still reigned supreme in Germany. Indicators for the importance of the Federal Constitutional Court (FCC) within Germany’s political system are the media coverage of the Court’s public hearings and the political salience of the issues debated in Karlsruhe. In the reported year, the Second Senate of the FCC discussed the fate of the National Democratic Party of Germany (NPD) for three full days in early March – one of the longest oral arguments in the history of the Court – with a large number of influential politicians present at the hearing.[1] Two weeks later, the Court again dominated the news cycle, when the administration had to defend its decision to unwind Germany’s nuclear energy industry after the Fukushima catastrophe before the First Senate. And in February and September, an international audience was observing the proceedings in cases involving the European Central Bank’s notorious OMT program and the EU-Canada Free Trade Agreement (CETA).

As elsewhere, however, after almost a decade of protracted crises, German institutions begin to show signs of stress and exhaustion. Populism is at the gates and 2017 – a big election year in Germany – will tell us, whether the centrist consensus, which has shaped post-war politics in Germany for almost seven decades now, will hold. In view of these developments, it is an open question whether the constitutional moments staged in Karlsruhe will continue to be a moment of societal “integration” – or whether the juridical taming of politics that has earned the Court its high reputation in the past will become associated with the fuzzy notion of “elitism” that populist movements all over the globe pretend to attack so violently.

So far, the judges seem more or less unimpressed by such considerations.[3]

Nevertheless, observers and judges agree that the FCC is under pressure, too. This pressure, however, is also a consequence of some of the Court’s successes in the past.

Over the years, parallel to Germany’s becoming the “reluctant hegemon” of Europe (The Economist), the FCC has taken a more activist stance towards matters of European and international integration. This outreach has opened up an inward-looking constitutional doctrine and has added an important voice to the global constitutional discourse. But, since the Court’s domestic caseload has not decreased, taking up the new global role has strained the FCC’s resources. In 2016, the institutional costs were particularly visible in the CETA case, where the Second Senate of the Court had to decide overnight on an application for a preliminary injunction against the approval of the Treaty by the German representative in the Council of the European Union.[4] Already from a technical point of view this was an enormous task considering that the German version of the draft treaty runs over nearly 500 pages. Moreover, an order prohibiting the approval would have very likely killed the agreement and would have had major ramifications for the global debate on free trade. How to account for such externalities within the categories and grammar of constitutional law?

Additionally, the doctrinal edifice that the Court has built over the past 65 years, especially in the area of fundamental rights law, is increasingly difficult to sustain. German constitutional doctrine is famous as an attempt to pre-empt and mediate the inherent irrationalities and injustices of democratic power. However, this project has also induced a massive legalisation of politics, which, in turn, has further increased the need and the opportunities for constitutional review. In reaction to more and more subtly differentiated constitutional requirements, statutory law proliferates. Cases brought before the Court today in fields like law enforcement or tax law frequently involve convoluted statutes. If judges take their case law seriously, they must dive deeply into highly technical matters and check multi-dimensional normative programs – a time-consuming enterprise that again is straining the resources of the Court. One example is the 2016 decision on the investigative powers of the Bundeskriminalamt.[5] As described in more detail below, the Court had to evaluate in this case a statute that was already drafted in a very elaborate way in order to comply with previous FCC judgements. The 2016 decision then again partly quashed the statute and developed in over 360 paragraphs even more precise requirements for government surveillance. The rationalizing impetus underlying this and other judgements is certainly laudable. However, the Court has to be careful not to let its jurisprudence develop into a casuistry that makes it impossible even for a well-meaning legislator to act constitutionally.

So, apart from the larger political context, the current challenges for the FCC include bridging the gap between its new global role and its domestic responsibilities as well as balancing its traditional doctrinal approach with the more recent role as an evaluator of normative complexity. For the report we have chosen from 2016’s major decisions those that demonstrate how the Court is currently approaching these challenges.

Domestic separation of powers cases can have important international ramifications, as shown by this case. In the aftermath of the Snowden revelations, the German Bundestag established the so-called “Committee of Inquiry into NSA Activities.” Primary purpose of the Committee was – and still is – to investigate whether the joint signal intelligence activities by the German Federal Intelligence Service (BND) and the U.S. National Security Agency (NSA) violate constitutional rights. To this end, the Committee requested from the Federal Government to hand over a documentation of all search terms (so-called “selector lists”), which the BND had received from the NSA in order to filter traffic at German Internet hubs. The Government refused to comply arguing that such a disclosure would violate the expectations of confidentiality on behalf of the U.S. government and would seriously undermine transatlantic intelligence cooperation. Two parliamentary groups and members of the Committee challenged the refusal citing Article 44 of the Basic Law, which grants inquiry committees the right to collect evidence.

The Second Senate of the Court ruled that the application was unfounded. Traditionally, the FCC acknowledges the importance of inquiry committees as accountability mechanisms and emphasizes that the right to collect evidence belongs “to the core of the right of inquiry.” In this case, however, the FCC stressed the limitations of the right, further accentuating a 2014 decision, which had recognized limits of the right in the field of foreign policy and national security.[6] In the 2016 decision, the Court again evaluated the Committee’s right in light of the government’s interest to effectively organize the intelligence services and intelligence cooperation. This interest is of constitutional relevance, because national security belongs to the government’s “functional” sphere of competence.[7] However, the Court stressed that national security is not generally off-limits for parliamentary inquiries. Rather, a balancing test is necessary. In the concrete case, the specific interests of the Committee in receiving the selector lists was outweighed by the potential implications of the collection for national security and for the U.S.-German relationship, especially considering that the Government had already provided the Committee with detailed information on the cooperation. The concept of a national security exception will ring familiar to constitutional lawyers from the U.S. and other jurisdictions. Many German scholars remain highly sceptical in this regard.

Judgment of 6 December 2016, 1 BvR 2821/11, 1 BvR 321/12 and 1 BvR 1456/12 – The phase-out of nuclear energy and the right to property

The case presented the last chapter of the fickle story of German politics with regard to the civil use of nuclear energy. In 2002 the red-green government (Schröder) gradually abolished its use with generous transitory rules for the energy industry that was permitted to produce nuclear energy for further decades. At the end of 2010 the liberal-conservative government (Merkel) reintroduced this vastly unpopular technology with one eye to climate change and the other one to business interests. Three months after this statute took effect the Fukushima incident took place. Chancellor Merkel quickly changed her mind, pulled back from the re-entry and had a parliamentary statute passed that now defines a statutory deadline for every single nuclear power-plant in Germany. Still, the statute attempted to secure the amounts of energy that the Schröder government guaranteed for the energy companies. The statute reached this aim in most, but not all of the cases.

Three energy companies sued the federal government for a violation of their property rights. One of them was Vattenfall, a Swedish company, which is completely owned by the Swedish state. As a foreign company Vattenfall had an additional remedy. It pursued basically the same claim under a foreign investment treaty between Germany and Sweden. The case is still pending and to be adjudicated by an ICSID panel in Washington DC. This background is especially relevant, because Vattenfall’s legal standing in the German case was contested. Under German doctrine state owned private corporations are not entitled to basic rights. Rather, they are treated like state organs, who are only obliged by rights. Does this rule also apply to private companies owned by foreign states? The question had never come before a German court. The FCC explicitly gave no general answer to this question, but it accepted Vattenfalls’s case with a rather informal nod to European law (paras. 184–202) and a reasoning that sounds more pragmatic than doctrinal. For the practical relation between the national constitutional review case and the investment protection case, this decision was extremely relevant. Had the Court not accepted Vattenfall’s case because of a lack of standing, Vattenfall could have argued before the investment tribunal that its private property is without any national legal protection in Germany, because there is no other legal remedy against a parliamentary statute than the FCC complaint, even if the statute directly infringes upon your rights. In the end, Vattenfall’s was the most successful claim in this case.

Otherwise, the application of the companies remained mostly without success. With the exception of two particular power plants whose treatment fell out of the statutory scheme, the Court accepted the parliamentary decision. In a lengthy reasoning, which attempts to consolidate the complicated state of the constitutional protection of private property, the Court mostly follows traditional paths: It confirmed the scope of the property protection, but gave some interesting qualifications for the protection of administrative law permissions and their relation to private real estate property (paras. 220–241). It confirmed the line between a taking (Enteignung) and a regulation of private property (Inhalts- und Schrankenbestimmung) in a manner that remains as formal as it had been before (paras. 242–261). This means that a “taking” is not defined by the severity of the economic effect of a state decision, but by its formal structure. According to this generally accepted interpretation, terminating a permission, like the legislature did in this case, is a regulation, not a taking, because the property is not delivered to another legal person. Therefore, it does not trigger the constitutional compensation clause that is limited to formal takings. The companies had tried to change this settled distinction by buying masses of expertise in form of legal opinions. (even from former Justices of the Court who seem to receive more and more of this kind of offers in the absence of any legal rules or ethical standards), but it didn’t help. The real test of the statute came with regard to the reasonableness of the statutory scheme, a form of equality review that is used more and more by the First Senate in rights cases leading to a certain accommodation between constitutional and administrative law review. Here, the Senate was not completely convinced by the method, which the legislature had chosen in dealing with the question, which plant should be terminated at which time. Therefore, some kind of remedy (not necessarily monetary compensation, but instead more time to use the plant) has to be given to two of the plaintiffs. The Court also awarded some compensation for legitimate expectations as far as the plaintiffs had made specific investments between the short-lived reintroduction of nuclear energy and its abrupt end three months later. But so far, it doesn’t look like there are relevant claims for this period of time.

This was a big case in terms of factual complexity and money, less so in terms of legal doctrine. It broke little new law, but it will remain very helpful as a fresh account on many aspects of German constitutional property doctrine.

In 2009, the grand coalition passed a fundamental reform of the powers of the Federal Criminal Office (Bundeskriminalamt or BKA). Most police forces in Germany are run by the states (as the Americans required from the Germans during the deliberations of the Grundgesetz). But the centralization and federalization of the German police has been under way since 9/11 and the process has not yet come to an end. Today’s still growing operative federal police force (Bundespolizei) grew out of the federal border patrol and is becoming more and more relevant. The BKA is not (at least not yet) the organizational head of this federal police force, but a federal office of its own. For decades it had been restricted to co-ordinating and information gathering functions. After the constitutional rules of executive power sharing had been amended in 2006, it became possible to redefine the functions of the office. With the new statute, it received plenary operative powers, e.g. for wire-tapping, online-searches or GPS-surveillance, powers that are in most cases already available to the state police. The statutory powers under review are subsidiary in relation to the state police and only apply under the condition that a case of international terrorism is in question. As a matter of practice, they had only be applied in double-digit numbers during the years, in which the litigation took place. In Germany, the functions of the police are governed by two kinds of regimes. When the police investigates a crime, it is empowered by federal rules of criminal procedure. But when the police acts in order to prevent a “danger” (an old core concept of German administrative law, meaning a certain substantiated possibility that a protected legal good will be thwarted), it is governed by specific rules of “police law.” In this case, the statute was part of this federal police law.

A group of attorneys and liberal politicians raised a sweeping individual constitutional complaint against the statute addressing more or less all authorizations in it. The lengthy decision reads like a manual of constitutional standards for modern police forces. Though many questions had already been settled by the First Senate in its rich and detailed jurisprudence on the constitutional limits of police powers[8] and though this jurisprudence played a major rule in the drafting of the statute, the Court found many of the complaints to be successful. Different from many other major cases, this one is not centred around one or two big legal problems. Rather, it is a collection of around twenty highly technical constitutional problems that are basically all solved by a very specific, though not always completely foreseeable, application of the principle of proportionality. To select just three of them:

First, it is one of the most difficult questions of the more recent debate in how far the legislator is bound to the traditional standard of “concrete danger” in order to empower the police to liberty infringing measures. The standard is pre-constitutional, but relatively demanding when applied to preventive information gathering in a situation when concrete but incomplete pieces of information may require more intrusive measures like wire-tapping. Under certain circumstances the Court accepts a less demanding standard, yet it insists, that measures must always be based on concrete pieces of evidence, not on mere general experiences (paras. 109–113).

A second problem follows from the effects of human dignity. The Court has deduced from human dignity a so called absolute core of intimate privacy (Kernbereich privater Lebensgestaltung), in which the state must not intrude under any circumstances.[9] In order to prevent such intrusions, procedural protections must be in place for certain qualified measures. Wiretapping of a private phone must, therefore, be reviewed in real time by a government lawyer who has to stop the measure whenever the gathered information approaches this private “core.” But what about standard measures like the search of a handbag, when the police finds a diary? Do they have to be accompanied by comparable procedural protections? In this decision, the Court has considerably extended the constitutionally required scope for such measures (paras. 119–130). From now on, many traditional standard measures like outdoor long-term observation have to be the accompanied by protective measures. This also means that much of the classical police work has to be done or at least accompanied by government lawyers.

Thirdly: The plaintiffs went to court in 2009, long before Eduard Snowden’s publications on the NSA and its practices in controlling global internet communication. The question of international anti-terrorism co-operation was not a big issue back then. Even the plaintiffs barely mentioned it in their briefs. Today, it has become a major concern for the German Court, which stipulates in the decision very demanding standards for the transfer of information between national and international security organs. The selection of a country and the procedures, in which personally relevant information can be transferred have to be determined by the legislature in detail. These constitutional requirements are virtually incompatible with the holdings of the Second Senate in the NSA case (see above sub III.1). While the First Senate requires the legislator to define the way international co-operation is practiced, the Second Senate excludes the legislator from the realm of international intelligence co-operation. As the Court is always careful to avoid an open debate of these contradictions in a plenary session, this tension is unlikely to go away soon. Plaintiffs are advised to get to the First Senate, state organs should rather seek the Second.

Judgement of 31 May 2016, 1 BvR 1585/13 – Sampling and the right to artistic freedom

For German constitutional judges, cases involving the arts are relatively rare, although Article 5 sec. 3 of the Basic Law explicitly recognizes the right to artistic freedom. So, one can assume that the FCC approached the case reported here with more than the usual excitement, not the least because cases on art law give judges the opportunity to prove that underneath their robes creative spirits hide. Usually, these spirits are then transformed in eloquent prose on the importance of art and artistic freedom.

The case at hand concerns a highly controversial issue in contemporary art: sampling. In 1977, the electronic music band “Kraftwerk,” probably best known for the 1974 song “Autobahn,” released its sixth album “Trans Europa Express.” The album featured a composition called “Metall auf Metall”. Twenty years later, a German hip hop-producer took a two-second rhythm sequence from the original song and used this “sample” as a continuously repeated rhythm break (loop) for a new song. Kraftwerk sought a cease and desist order and sued the composer and the production company for damages. The case dragged in various courts for almost a decade until it finally reached the FCC. Claimants before the FCC were the composers and the production company of the 1997 song, after the Federal Court of Justice (FCJ)[10] had ruled that even the use of extremely short parts of a song can violate the original producer’s right to copyright protection. According to the FCJ, “sampling” was not justified by the free use exception of § 24 sec. 1 of the German Act on Copyright and Related Rights (Urheberrechtsgesetz). The claimants before the FCC argued that the FCJ’s decision had not taken into account that sampling itself is a central part of the musical culture that forms hip hop.

The First Senate of the FCC ruled that the FCJ’s decision had violated the right to artistic freedom of the claimants. It started its legal analysis with the observation that copyright law needs to strike a balance between the property interests of the producers and the conflicting fundamental rights of subsequent users (para. 82). The Court then elaborated that sampling per se is not excluded from constitutional protection as an expression of the right to artistic freedom, because the right is not limited to prima facie legal activities (para. 90). Quoting an article from a musicologist with the title “The Birth of Pop from the Spirit of Phonographic Reproduction”, the Court then elaborated that in hip hop the direct citation of an original sample is considered to be an important means for the “‘aesthetic re-formulation of the collective memory of cultural communities’ … and as such an essential element of an experimentally synthesizing process of creation” (para. 99). On this ground the FCC held that, if a music genre defines itself through aesthetic strategies involving copying, the constitution demands that copyright laws and their application must take this into account.

The Court then criticized the approach of the FCJ, which had attempted to strike a balance between the rights of the original creator and the “copier” by asking, how difficult it was to reproduce the original. Instead, the FCC obliged the FCJ, to which the case was sent back, to consider in its application of the “fair use” principle criteria such as the “artistic and temporal gap to the original work,” “the significance of the borrowed sequence,” and “the impact of the economic damage for the creator of the original work” (para. 102).

In a final and interesting twist, the FCC also asked the FCJ to investigate, whether the FCC’s interpretation of German constitutional law could be squared with EU law, because at least some of the copyright claims might also be subject to the European Union Directive on Copyright. In this case, the FCJ will need to assess whether EU law leaves room to apply German (constitutional) law, eventually by refering the case to the European Court of Justice. Scholars should study this technique of “indirect referral” carefully.

Ines Duhanic, Copy this sound! The cultural importance of sampling for hip hop music in copyright law – a copyright law analysis of the sampling decision of the German Federal Constitutional Court, Journal of Intellectual Property Law & Practice (2016) 11 (12): 932-945.

Judgment of 19 April 2016, 1 BvR 3309/13 – On the right to determine parentage

The right of an individual to know his or her parents is widely recognized as one aspect of the general right to private life (Article 8 of the European Charter of Human Rights), or of the so-called “general right of personality,” which under German doctrine is derived from Article 2 sec. 1 in conjunction with Article 1 sec. 1 of the Basic Law (Allgemeines Persönlichkeitsrecht). For a long time, legal proceedings to establish parentage were quite cumbersome for children, also because the parental relationship was hard to prove from a biological point of view. With the arrival of reliable genetic parentage test, this changed and consequently the legal field has been upended. The FCC itself was confronted several times with this development[11], as was the European Court of Human Rights[12]. In 2007, the FCC obliged the legislator to pass regulation that made it possible for children to initiate court proceedings in order to determine “legal paternity” (see § 1600d of the Civil Code (Bürgerliches Gesetzbuch)). Through such proceedings, a legal father-child relationship can be established, including all mutual rights and obligations. But children do not always seek “legal paternity.” Some are only concerned with “biological paternity,” i.e. they want to find out who is the biological father without necessarily establishing a legal bond to this person. In German civil law, such a claim can be based on § 1598a of the Civil Code. However, this provision only grants such a right for the father, the mother, or the child within an existing legal family vis-à-vis the other two members of that family. People outside this small group cannot be forced by legal means to consent to a genetic parentage test or to providing a genetic sample suitable for such a test.

This legal situation is unsatisfying for those who suspect that their legal family is not their real family, but who do not necessarily want to give up their existing (legal) family ties. The complainant in the present case, who was born out of wedlock in 1950, was in such a situation. Having failed to convince the civil courts that § 1598a of the Civil Code should be interpreted broadly as to give a claim also towards the “putative biological, but not legal father”, the claimant turned to the FCC and argued that such an interpretation was mandated by its constitutional “right of personality.”

The FCC, however, held that the constitutional complaint was unfounded, because the legislator was not obliged to provide for an “isolated right against the putative biological, but not legal father to determine parentage.” The Court emphasized the high constitutional rank of the right to know one’s parents (paras. 35–37) and repeated that, in general, the state, when setting up a legal system to determine familial relations, has a constitutional obligation to appropriately take into account the legitimate interests of those individuals from whom available information on their origins (or, from the perspective of the potential fathers seeking to clarify his relations, on their parenthood) is withheld. However, in light of the many conflicting fundamental rights claims at stake, the legislature has a wide “margin of appreciation” when weighing the conflicting claims. In particular, the “right to respect for one’s private and intimate sphere” (Recht auf Achtung der Privat- und Intimsphäre) derived from Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 of the Basic Law has to be taken into account, which protects both the mother and the potential biological father from disclosing information on sexual relationships against their will (paras. 53–54). Moreover, a man whose biological paternity is determined against his will is affected in his right to informational self-determination (Recht auf informationelle Selbstbestimmung) (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 of the Basic Law) and in his right to physical integrity (Art. 2 sec. 2 of the Basic Law) (paras. 5558). Finally, the members of the child’s existing legal family have a right to family life protected under Art. 6 sec. 1 GG are affected (paras. 59, 63).

In such a complex normative situation, the legislature’s decision not to provide the means for determining parentage in isolated proceedings vis-à-vis the putative biological father is not impermissible, even though a different legislative decision might also be compatible with the Basic Law (para. 72). The FCC concludes its judgement – a rare example of judicial restraint – with six lengthy paragraphs on ECtHR case law finding that the ECtHR has acknowledged a significant margin of appreciation in these cases.[13]

The legal battle over multilateral trade agreements is currently fought on many grounds. In the European Union, the Court of Justice will soon decide on the division of powers between the Union and the Member States.[14] But opponents of the trade deals also take recourse to national courts, including the FCC. In what was promoted as the “biggest constitutional complaint in the history of the Court,” over 200.000 applicants joint forces to challenge Germany’s participation in the EU–Canada Comprehensive Economic and Trade Agreement (CETA) and thus ultimately the ability of the EU to close the deal. In a parallel Organstreit proceeding, the parliamentary group of the Left Party in the Bundestag pursued the same objectives.[15]

The claimants relied on a now well-known doctrinal construct that the Court had initially invented to let citizens challenge the constitutionality of EU acts by means of an individual constitutional complaint (Verfassungsbeschwerde). The core of the argument is that the individual right to vote (Article 38 of the Basic Law) in conjunction with the constitutional principle of democracy (Articles 79 sec. 3 and Articles 20 secs. 1 and 2 of the Basic Law) does not only guarantee formal participation in an election, but meaningful representation.[16] In other words, German voters can claim that the competences of the democratically elected German parliament must not be undermined or hollowed out. The competences would be undermined, if EU institutions, eventually acting in concert with the German federal government, breach the existing primary law and act outside of the competences attributed to the Union under the treaties (so-called ultra vires acts). Representation would be hollowed out, if the proposed acts implicated Germany’s “constitutional identity”, e.g. legal bodies would be created that were incompatible with the principle of democracy (Articles 20 secs. 1 and 2 of the Basic Law).

The claimants argued that several parts of CETA did not fall within the scope of the competences the European Union. Additionally, CETA would empower democratically unaccountable institutions – so-called dispute settlement bodies –, which would hollow out the political process and the representative institutions in the member states and thus violate the “constitutional identity” of the Basic Law. The petitioners urged the Court to take immediate action and to issue a preliminary injunction in order to prevent the Council of the European Union from authorizing the signing of CETA and its provisional application.

The Court acted swiftly. In an unusual move, it ordered a public hearing on the question whether a preliminary injunction should be issued. After a day of debate and a night of deliberation, the Court declined to issue the preliminary injunction.

One should not read too much into this decision: The statutory standard for preliminary injunctions is defined in § 32 sec. 1 of the Federal Constitutional Court Act. According to this law, an injunction will be issued only “if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good.” In applying this rule, the Court traditionally weighs only the consequences it would have, if it would or would not issue the injunction; whether or not the plaintiffs are likely to succeed on the merits of a case, is only taken into consideration, if the outcome is obvious.

Against this backdrop, the lengthy CETA opinion leaves much room for interpretation on how the case will be decided on the merits. Nevertheless, it is already clear from the decision that the FCC takes the constitutional challenges seriously. While the Court emphasizes the importance of external trade relations, the broad discretion of the Federal Government in the fields of European, foreign and foreign economic policy as well as the “reliability on the part of the Federal Republic of Germany” as a pre-condition for the global influence of Germany and the European Union, it also affirms several points that are crucial for the plaintiffs’ challenge, namely the distinction between foreign direct investment and foreign portfolio investment (no EU competence for the latter, according to the Court, para. 53)[17], the existence of additional limits to EU competences in several areas covered by CETA (paras. 54–58), and, most importantly, the need to ensure democratic accountability of all institutions created by CETA (paras. 59–65). These standards will most certainly be fleshed out in the final decision and could seriously impede the ability of Germany, and consequently of the EU, to participate in ambitious multilateral trade projects. How the standards will relate to the CJEU’s Singapore decision, will be one of the more interesting questions in the following years.

Technically a case from 2015 (the decision dates from December 15, but was published only in February 2016), the Treaty Override decision addresses one of the central question of international law: When and how can states in dualist systems disobey international treaties?

The case originated from a legal dispute involving the now defunct 1985 Double Taxation Treaty between Germany and Turkey. In this treaty, the two countries had agreed on measures to avoid double taxation. According to the German Federal Court of Finance, who referred the case to the FCC, a later statutory amendment to the German Income Tax Act from 2003 directly contravened the Treaty. The Federal Court of Finance asked the FCC, if the enactment of the Income Tax Act would not only be a unilateral breach of Germany’s international obligations[18], but also violate the German Basic Law.

From a doctrinal point of view, it is not immediately clear, how the Federal Court of Finance could arrive at this conclusion. Article 59 sec. 2 sentence 1 of the Basic Law is commonly read as stating that international treaties enjoy the same rank as federal statutory law. And as a part of federal statutory law, they are subject to the principle “lex posterior derogat legi priori” (a later law supersedes a prior, conflicting law). How can the conflict between two statutory laws rise the issue of constitutionality?

For the Federal Court of Finance, the answer was: Görgülü (para. 14). In this seminal case from 2004, the FCC had decided that, despite the generally dualist approach of the Basic Law, the European Charter of Human Rights – an international treaty – enjoyed an elevated rank amongst German statutory law.[19] Elevated means that all German law, including the Basic Law, must be interpreted in light of the Convention and of the judgments of the European Court of Human Rights. According to the FCC, a violation of this obligation is at the same time also a violation of the principle of legality (Article 20 sec. 3 Basic Law) and can be challenged before the FCC. Now, the referring chamber of the Federal Court of Finance, in line with many German scholars, derived from Görgülü the rule that not only the Convention, but international treaty law in general supersedes federal statutory law and that the parliament may deviate from international treaties only to protect “fundamental constitutional principles” (para. 59). International treaties would thus enjoy almost the same rank as customary international law or the general principles of international law [20]

However, in a political climate, which associates international treaties mostly with investment tribunals and international tax avoidance, arguing for the position that treaties generally take precedence over parliamentary acts, was an uphill battle from the beginning. And, as the FCC made sufficiently clear, it was also based on a serious misreading of the Court’s previous decisions. The FCC first repeated that, as a rule, the domestic status of international treaties equals the status of federal statutory law (Article 59 sec. 2 of the Basic Law). The Court added that while the Basic Law is strongly committed to international law, the principle of “openness to international law” (Grundsatz der Völkerrechtsfreundlichkeit des Grundgesetzes) does not translate into an absolute constitutional obligation to obey all rules of international law. While the principle enjoys constitutional rank, it must be balanced with the principles of democracy and parliamentary discontinuity. The Court emphasizes: “Democratic power is always temporary power” (para. 53). Therefore, as a general rule, Parliament must not bind its successors and limit their ability to correct past legislative decisions, because “this would set political views in stone” (id.). In order to balance its commitment to international law with the idea of democratic government, the Basic Law itself has created a differentiated system, which is not up for judicial re-invention. Görgülü then, the Court explained, was a different matter, because the Constitution itself recognizes in Article 1 sec. 2 of the Basic Law the protection the human rights as one of the central values of German constitutionalism (para. 59).

One member of the Court, Justice König, herself an international lawyer, was unimpressed by the majority opinion. In her dissent, she declared the formalist view of the majority to be “outdated” and proposed a general balancing test for the evaluation of the constitutionality of treaty overrides based on a set of criteria such as the goal of the later statute, the role of individuals affected by the override, the urgency of the override and the international consequences of the breach (para. 8 of the dissent).

Judgment 2 BvR 2728/13 et al. – The constitutionality of the OMT Programme of the European Central Bank

With this judgment ends the longest case saga in the history of the Court. In the summer of 2012 at the height of the Euro crisis, a group of citizens and MPs raised constitutional complaints and Organstreit proceedings (proceedings on a dispute between supreme federal bodies) against federal legislation on the introduction of the European Stabilization Mechanism (ESM) and the Fiscal Treaty. Only a couple of days after the Court had given a preliminary decision, in which it held both measures, by and large, to be constitutional[21], Mario Draghi announced the OMT program in a famous press conference (“whatever it takes…”) promising to the markets that the bank would function as a lender of last resort in order to stabilize the common currency. In a step that is not untypical for the high degree of informality in German constitutional procedure the plaintiffs extended their complaint in the main proceedings by including the decision of the ECB into their complaint. The Court accepted this and while the oral argument about the preliminary injunction was mostly concerned with the ESM, the oral argument in the main case was a battle about the legitimacy of the ECB, while ESM and Fiscal Treaty were barely mentioned. 2014, the Court declared in a first decision ESM and the Fiscal Treaty to be constitutional.[22] In a second decision, six of the eight justices declared their opinion that the OMT-program was not covered by the mandate of the ECB. For the first time in the history of the Court, the majority referred the case for a preliminary ruling to the CJEU.[23] As generally expected, the CJEU did not share the German concerns and decided that the decision of the ECB was legal.[24] To formally terminate the procedure, the German Court had now to react to the decision of the CJEU[25].

In its reference to the CJEU, the FCC had developed two legal arguments to explain its doubts regarding the OMT-Program. Firstly, it saw the distinction between monetary and economic politics being undermined by the ECB’s decision. Secondly, the Court interpreted the OMT-program as a violation of the prohibition of direct monetary financing of states through the ECB in Art. 123 and 125 TFEU. As the FCC is, according to its own standard, not entitled to review all violations of European law through European organs, but only “evident” ones that create a “structural shift” within the European competence order,[26] the Court had to establish a manifest violation of the ECB. Now, after the decision of the CJEU, it was confronted with an opinion that did not only see no manifest, but no violation at all. It seems fair to say that both courts have a point. The CJEU, not accustomed to a full-fledged review of an essentially political decision that still kept the form of a central bank action, performed a relatively comprehensive and clear review of the ECB’s action. The fact that it left the interpretation of the facts to an independent expertocratic agency does not seem too unusual. As far as the German Court is concerned, there were indications that the true intention of the ECB’s action was different from classical monetary politics. But anyways, the real challenge for the German Court was procedural. Even if the ECB acted without a mandate, which part of the German state can be made responsible for the action of an independent EU organ? This puzzle was never really solved in the case.

In order to conciliate these starkly contradicting positions in this final decision, the Court noted that its own interpretation of European law was not able to substitute the interpretation of the CJEU. Instead, it had to check according to a weaker standard, if the CJEU had rendered a meaningful independent review of the legality of ECB action, even if this review came to a different result than the FCC’s assessment (para. 161). To square the, circle the FCC interpreted the CJEU’s decision in a very specific way, an interpretation that can also be read as a warning. The FCC took the CJEU’s factual description of the ECB’s program as normative requirements. In other words, it read the ECB’s own description of the OMT program as conditions for the legality of the program, e.g. with regard to the safeguards that should prevent states from refinancing themselves directly through the program (paras. 163 et seq.). This reading creates something like a substantial constitutional standard for actions of the ECB. We will see, if these standards will be used some day by the European courts or if they will remain just a piece of German European constitutional law.

2016 was a year with many legally wide-ranging and politically important decisions. All in all, the ability of the FCC, a relatively small institution, to lead substantial oral arguments and to deliver many thoroughly argued judgments remains astonishing. Yet, the danger of an institutional overstretch, both as a matter of institutional capacity and of political legitimacy, debated since the 1970s, seems to become more and more acute. Maybe wrongly so: Between 1985 and 1999 the Court published 33 volumes of its official collection – and between 2000 and 2014 36 volumes. This is only a modest increase. A historical perspective may teach us that the presence of the Court in virtually all politically contested questions has been a part of the normality of the Federal Republic since its beginnings.

Recent Literature

Justin Collings: Democracy’s guardians. A history of the German Federal Constitutional Court 1951–2001 (OUP 2015).

Klaus Ferdinand Gärditz: Territoriality, Democracy, and Borders: A Retrospective on the “Refugee Crisis”, German Law Journal 17 (2016), pp. 907–922.

Stephan Jaggi: The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law: The Forgotten Revolution? (Hart & Nomos 2016).

[1] For a description of the proceedings see Russell A. Miller, How to Kill an Idea: An American’s Observations on the NPD Party-Ban Proceedings, VerfBlog, 13 January 2017, http://verfassungsblog.de/how-to-kill-an-idea-an-americans-observations-on-the-npd-party-ban-proceedings/.

[2] The Federal Constitutional Court is one of the most well-researched courts in the world. Basic information on the Court in English, including a documentation of current and past cases, a description of the various types of proceedings, a history of the Court and the annual statistics, can be found on the Court’s website, http://www.bundesverfassungsgericht.de/EN/Homepage/home_node.html. The official statistics for 2016 are not available, yet.

[3] However, as any other court, the FCC has always been influenced by public opinion. A detailed history of where the FCC has followed shifts in public opinion (e.g., during the European debt crisis) and where it has not, remains to be written.

[20] For these types of rules Article 25 of the Basic Law orders: “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.”

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

The Supreme Court of South Korea ordered the government to register an LGBT foundation as a charity, in light of the right to freedom of assembly.

The Supreme Court of Sri Lanka rejected several sections of a proposed bill that would have transformed the country’s tax system on constitutional grounds.

The Supreme Court of India requested a response of the National Investigating Agency and the Kerala High Court, to hear a case pertaining the annulment of a marriage between a Muslim man and a Hindu woman.

The Supreme Court of India upheld a centralized all-India mechanism aimed at improving the selection process of judges for the lower judiciary.

The Supreme Court of Israel struck down a tax imposed on owners of several housing units, given that it was not properly approved by the Knesset.

The Supreme Court of Kenya dismissed a challenge against the nomination of James Onyango K’Oyoo as an MP candidate for the Muhoroni constituency.

The Venezuelan Supreme Tribunal sentenced an opposition Mayor to 15 months in prison.

The Supreme Court of Australia ruled that certain fake guns must be considered replicas (i.e. not toys) regardless of the categorization given by the product’s package.

The Supreme Court of Canada issued two landmark decisions defining the scope of the right of indigenous communities to be consulted prior to implementation of projects that may affect their interests.

The Supreme Court of Costa Rica (Constitutional Chamber) concluded that the prohibition on certain types of rice sales is constitutional.

The Supreme Court of Ireland declared that the cessation of pension payments to prisoners is unconstitutional, given that it breached the principle of separation of powers and amounted to an additional punishment against the appellant.

In the News

The Catalonian Parliament passed a fast-track procedure to enact laws required to advance the independence referendum to be held on October 1, 2017.

The controversial Venezuelan constituent assembly fired the Attorney General, who has been a prominent critic of President Maduro’s plan for enacting a new constitution.

The Libyan constituent assembly approved Chapter 5 of the draft Constitution, which institutes a new Constitutional Court.

Two prominent German newspapers filed a claim before the European Court of Human rights, due to the incarceration of one their correspondents in Turkey.

Egypt’s ousted President Mohamed Morsi claimed that the trial that ordinary courts are conducting against him is not valid given that, according to the Constitution, Presidents must be tried by a special court.

The President of the Latin American and Caribbean Parliament expressed her concerns on the U.S. environmental policy shift, and also stated that the world is eager to hear the American alternatives to its withdrawal from the Paris Accord.

President of Philippines Rodrigo Duterte announced his plan to create a 24-member commission to draft a new constitution.

Religious leaders signed an appeal sent to the Parliament of Georgia claiming that the proposed constitution threatens religious minorities.

The Japanese Liberal Democratic Party along with PM Shinzo Abe decided to change the original timetable for constitutional change.

Mauritanian electorate voted in a referendum to abolish the Senate and to change the national flag.

The President of the UK’s Supreme Court Lord Neuberger asked the Parliament to clarify how courts should interpret the European Court of Justice rulings after “Brexit.”

A French Senator nominated to the Constitutional Council withdrew his nomination amidst allegations of misbehaviour during his tenure as Minister of Justice.

After defeating his rival by a relatively narrow margin, President Uhuru Kenyatta has been reelected for a new term in Kenya.

South African President Jacob Zuma survived in a no-confidence vote by the opposition.

Chicago filed a suit against U.S. President Trump’s decision of cutting federal funding to so-called “sanctuary cities.”

Liberian President Ellen Johnson Sirleaf weighed in on the controversy between the House of Representatives and the Supreme Court.

Iranian President Hassan Rouhani appointed two female vice-presidents after calls for increasing women’s participation in his cabinet.

New Scholarship

Geert Corstens, Understanding the Rule of Law (2017) (providing an accessible and practical understanding of the Rule of Law, in light of landmark judgments issued by courts around the world)

Pasquale Pasquino, How do Constitutional Courts decide? Precedente (2017) (comparing the “mode of production” of judicial decisions issued by the Constitutional Tribunals of Germany, France and Italy, as well as by the U.S. Supreme Court) (in Spanish)

Professors Adam Chilton (University of Chicago Law School) and Mila Versteeg (University of Virginia School of Law) invite constitutional law experts to answer a survey on “Small-c Constitutions,” and more specifically about the nature and sources of constitutional law in several countries around the world.

The TARN Young Researchers Platform is organizing a workshop on Current and Future Challenges of EU Agencification on 20 November, 2017. The deadline for submission of abstracts is September 30, 2017.

The T.M.C. Asser Instituut invites submissions to its conference on “Human Dignity and Human Security in Times of Terrorism: International (Human Rights) Law Challenges and Opportunities,” that will take place in December 2017. The deadline for submissions is September 23, 2017.

The National Law School of India Review is accepting contributions for its forthcoming issue – Volume 30(1). The submission deadline is November 1, 2017.

The North-American section of the Société de législation comparée invites presentations to its bilingual conference “Law’s Porosities,” to be held at the American University Washington College of Law, on October 26, 2017. The deadline for submission of abstracts is August 31, 2017.

The American Society of Comparative Law convenes its annual meeting, which will focus on “Comparative Law, Faith and Religion: The Role of Faith in Law.” The meeting will take place on October 26-28, 2017.

Universidad de La Sabana Law and Political Sciences School in Colombia invites submissions to its conference on “Constitution, Human Rights and Legal Philosophy,” which will be held on September 27-29, 2017. The deadline for submission of abstracts is August 31, 2017.

[Editor’s Note: Today we publish the 2016 Report on Italian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.]

–Pietro Faraguna (LUISS University of Rome), Michele Massa (Catholic University of the Sacred Heart, Milano), Diletta Tega (University of Bologna), coordinated by Marta Cartabia (vice-President of the Italian Constitutional Court)

I. Introduction

The Constitution of Italy entered into force on January 1, 1948, following its adoption by a popularly elected Constituent assembly, which led Italy out of a difficult transition from the fascist regime to a full-fledged democracy. The Constitution is based on a series of fundamental principles that are common heritage of liberal states: separation of powers, checks and balances, due process of law, universal suffrage, and fundamental freedoms (of expression, of association, of assembly…). Among the most significant departure from the previous regime – which was characterized by a flexible, liberal constitution (Statuto Albertino) – was the incorporation of social rights into the new Constitution, and the safeguarding of the Constitution through its rigidity. Consequently, constitutional provisions have a higher rank than ordinary legislation and this higher rank is safeguarded through judicial review of legislation. The establishment of the Italian Constitutional Court (ICC) was one of the most impacting institutional novelty by the Constitution. It represented one of the earliest examples of the post-war European model of constitutional adjudication.[1] However, its implementation was far from an obstacle-free route.[2] The clearest sign of the distrust of political actors towards this institutional novelty was the delayed implementation of the ICC, which was only able to pronounce its first judgement in 1956. In 2016, the Court celebrated the 60th anniversary of its first judgement. It is undisputed that the Court has become one of the most influential and stable authorities in the Italian constitutional architecture. Although, there has been many changes in 60 years, one permanent character of the Court’s activity has been its “relational character”[3]: the ICC has always maintained an open and relational approach to other constitutional actors, both domestically and in the supranational and international dimension. This trend was also present during 2016 and emerges from the case law reported here.

This report firstly provides a brief introduction to the Italian Constitutional system, with a particular emphasis on the system of constitutional justice (section II). Secondly, the report contains a narrative exposition of two particularly important controversies from 2016 (section III). In these decisions, the ICC actively engaged as the supranational dimension of constitutional law, showing at the same time a high level of compliance to the principle of openness towards supranational and international law, and a firm stance in upholding the complex substantive and institutional balance of the Italian Constitution. In section IV, the report provides an overview of landmark judgements adopted by the ICC in 2016. The last section draws some conclusions.

In 2016, a far-reaching constitutional reform law was passed by the Parliament, to transform its second house (Senato) into a body representing the regions within national lawmaking procedures, and at the same time to expand national legislative competences. This reform was rejected in a constitutional referendum held on 4.12.2016. In the meantime, a new electoral law, concerning the first house of the Parliament (Camera dei deputati), had already been passed (in 2015). The ICC was just marginally involved in these two highly controversial topics. First, the constitutional referendum that called upon the Court to rule that a consumers’ association had no standing to directly challenge the acts summoning the referendum.[4] Second, the important ruling on the law for the election of the Chamber of deputies, which was initially scheduled for October 4, 2016, was postponed until 2017 (and subsequently announced on January 25, 2017).

II. The Constitution and the Court

The Italian Constitution provides the basic provisions regulating fundamental rights and constitutional institutions. As above-mentioned, it was adopted by the popularly elected Constituent Assembly that led Italy out of the constitutional transition from the pre-war fascist regime to a fully-fledged democratic state. It followed a “revolutionary path”. According to a recent categorization,[5] outsiders used the constitution to commit their new regime to the principles proclaimed during their previous struggle. It is a rigid constitution[6], as it possesses higher rank than ordinary legislation. Constitutional provisions may not be amended or derogated by ordinary legislation. Moreover, a special procedure for constitutional amendment is provided by the Constitution in order to ensure that any amendment to the Constitution is the outcome of a meditated decision to be adopted with a relatively broad political and electoral consensus. The ICC is part of the safeguards of the 1948 rigid Constitution. Its establishment was one of the most impacting institutional innovations of the 1948 Republican Constitution. Its nature and function was immediately revealed by the collocation of constitutional provisions regulating its functioning under the section entitled “Guarantees of the Constitution”. In fact, the Court was charged with jurisdiction “on cases related to constitutional legitimacy of laws, and acts having the force of law, of the state and the regions; on conflicts regarding the allocation of power among the branches of the state and on those between the state and the regions, and among the regions; and on charges brought against the President of the Republic, according to the Constitution.” Subsequently,[7] the Court was charged with an additional significant task, namely the review of admissibility of requests for abrogative referendums of legislative acts.

However, the Constitution provided only a regulatory sketch of the Court’s main tasks and duties. It took a long time for the Court to become equipped with a set of regulations adopted by the Parliament. Only eight years after the entry into force of the Republican Constitution, the ICC was eventually able to function and to deliver its first judgment: No. 1/1956[8]. The ICC is composed of fifteen judges, appointed through three different channels. Five of them are elected by the Parliament, five are appointed by the President of the Republic, and five are elected by members of the three superior tribunals (the Supreme Court, the Council of State and the Court of Auditors). Eligibility criteria are designed to guarantee a high level of independence and technical expertise. Each judge is appointed for a nine-year term of office, a relatively long term for constitutionally relevant offices in the Italian legal system. The term is not renewable nor extensible. The ICC is an essentially collegial organ, as no dissenting or concurring opinions are admitted and decisions are taken collectively. Consistently with this picture, the President of the Court is considered as a primus inter pares: he is elected by the judges in a secret ballot by absolute majority, and beyond his or her external representative function, his or her powers consist of assigning the role of case rapporteur, drawing up the Court calendar as well as convening and directing the work of the Court.

Among the functions of the Court, the first and, historically, the most characteristic task of the Court is to rule on controversies or disputes regarding the constitutional legitimacy of legislative acts and acts having the force of law. Legislative acts cover not only statutes enacted by Parliament, but also legislative decrees enacted by the Government pursuant to authority delegated by Parliament and decree-laws as well as emergency decrees adopted by the Government that expire unless converted into permanent law by Parliament. Legislative acts issued by the regions and the autonomous provinces, which have their own legislative power in the Italian constitutional system, are also covered by the jurisdiction of the Court.

The issue of the player entitled to activate the jurisdiction of the ICC has not been settled by the Constituent Assembly in the text of the Constitution, but is regulated by a further constitutional act approved in 1948. This constitutional act opted for a mixed system of access to the ICC. On the one hand, regions and the central government have a direct access to the Court. The central government may contest regional legislative acts alleged to be incompatile with any constitutional provision, while regional” authorities are entitled to contest national legislative acts alleged to be prejudicial to their own legislative competence as guaranteed by the Constitution. On the other hand, the “general” system of access to the Court is an indirect one, whereby a question of constitutionality may only be raised by judges within the framework of a controversy where the legislative act deemed unconstitutional needs to be applied. Additionally, referring judges are called on to act as filters, as they may refer a question of constitutionality only if their doubt on the constitutionality of the given act is “not manifestly unfounded” and the question of constitutionality affects a norm that is to be applied in the case at hand. In this sense, common judges, given their essential role in triggering the Court’s jurisdiction, have been depicted as “gatekeepers”[9] of constitutional adjudication.

Referrals are inadmissible and the ICC does not consider their merits if the referring judges fail in exercising their role as gatekeepers (e.g., if they do not explain why the resolution of the matter is relevant in the case over which they are presiding; if the question is inherently contradictory; or if it does not involve an act having the force of law). When the Court reaches a decision on the merits of a referred question regarding the constitutionality of a legal provision, it will issue a decision that either sustains (pronuncia di accoglimento) or will reject the challenge (pronuncia di rigetto). In the former cases, the Court declares the law unconstitutional. The consequence of these decisions is that the challenged law loses effect retrospectively: the law can no longer be applied by any judicial organ or public administration from the day following the publication of the Court’s decision in the official bulletin. This decision also precludes the application of the unconstitutional provision to past events. The Court’s declaration is definitive and generally applicable, in that its effect is not limited to the case in which the question was referred. Only recently, the Court started to use some techniques of modulation of the temporal effects of its judgement (e.g. Judgement 10/2015). However, these decisions are rare and have been harshly criticized by the legal scholarship.

On the contrary, it is common that a declaration of unconstitutionality affects only a portion of a law that is deemed incompatible with the Constitution. This may happen also with legislative vacuum, thus calling the Court to exercise an “innovative” function that is far from the kelsenian idea of the “negative legislator”[10]. This may only happen when the innovation is imposed in only one admissible direction by the Constitution, leaving no room for political discretion. When the Court rejects a constitutional challenge, it only declares the referred question “unfounded”, but does not prevent other judges from raising the same question (even at a different stage of the same proceeding), nor the same referring judge from raising a different question. Additionally, the Court may substantively modulate the effects of its decision by adopting interpretative judgements. These decisions confer a crucial role on interpretation and the related distinction between provisions and norms[11]. The ICC may use an interpretative judgement to strike down an interpretation as unconstitutional, while keeping parliamentary texts integer.

Even though the incidental access is generally considered to be typical of the Italian judicial review system, direct review has played an increasingly important role among the Court’s tasks, and has become the main portion of its workload following the regionalism reform in 2001.

A direct access to the Court is also provided in cases arising from conflicts of attributions, where the Court is called to settle disputes among state bodies. These cases are decided by defining which body is entitled to a certain power. Such conflicts may take origin from a dispute regarding the allocation of powers among state bodies or between state and regions (and among regions). This task is different from the one described above, as the challenged act is not normally a legislative act, but an administrative or judicial one, a factual behavior or even the omission of an act.

Paradoxically, an outline of constitutional adjudication in Italy would be only partial if it was limited to the activity of the ICC and the domestic organs. In the dualistic perspective that traditionally praised the Italian legal system, the ICC has, in principle, the exclusive authority over reviewing legislation. Nonetheless, the ICC needs to cope with the authority of other judicial bodies endowed with the power of adjudication. In particular, the Court of Justice of the European Union and the European Court of Human Rights have been assigned increasingly important tasks that need to be coordinated with national constitutional adjudication. Tasks and functions of the three courts do not overlap; however, they seem to constitute a composite constitutional system[12].

Italy’s membership in the EU has, over time, affected the Italian constitutional system in a very significant manner. The Italian model of constitutional adjudication makes no exemption. The European principles of supremacy and direct effect practically introduced a “second judicial review of legislation”[13] that accompanied the one described above. The ICC’s mind-set toward this phenomenon has dramatically changed over time. Initially adopting a reluctant approach, the Italian Court has transformed itself into one of the most Europe friendly national constitutional courts, and it has been on a “European Journey”[14] that has developed significantly over the courts of 2016. The next section focuses on these developments.

III. Constitutional Controversies

Over the last ten years[15], the ICC has actively deployed the supranational dimension of constitutional law and rights. The ICC enforced international law and the European Convention on Human Rights (ECHR), as well as EU law. In a few controversial cases, it also upheld the complex balance of substantive and institutional values underpinning the Italian Constitution against some rulings of the ECtHR[16] and International Court of Justice (ICJ).[17] Last year, poignant examples were given for both attitudes, regarding EU law and the ECJ.

Judgment no. 187 is (for now) the epilogue of a lengthy dispute, concerning the compatibility with EU directive on fixed-term work of the extensive use of temporary employment in schools, as authorized by Italian law[18]. Considering that the relevant EU provisions had no direct effect and ought to be enforced through the constitutional scrutiny of national law, the ICC[19] voiced widespread concerns of lower courts and joined one of them in requesting a preliminary ruling from the ECJ to clarify the scope of the directive. For the first time, the ICC requested a preliminary ruling in an incidental judgment (previously, just one request had been filed[20], after a complaint from the national Government against a regional law). With its Mascolo judgment[21], the ECJ held that, pending the completion of selection procedures for the recruitment of tenured staff, the renewal of fixed-term employment contracts could not be allowed indefinitely and that fixed-term employees were entitled to compensation for any damage suffered because of such renewal. Following this ruling, and before the constitutional proceedings reached their conclusion (also due to a wise postponement of their final stage), in yet another school reform,[22] the Parliament passed several provisions on the maximum duration of fixed-term employment contracts in schools and on compensation for past temporary staff. Therefore, judgment no. 187 concluded that EU law had been violated, but that the resulting abuse had been subsequently “nullified”. Although it may be disputed whether the afforded compensation is enough in every specific case, this sequence of events is a significant instance of cooperation amongst courts and with the legislator (albeit somewhat grudgingly). It is also an example of the ICC operating in its style and capacity of “networking facilitator”[23].

The so-called Taricco case, decided – after a lively debate in legal scholarship – on the November 23, 2016, with a ruling published on January 26, 2017[24], is another case of preliminary reference to the ECJ, with remarkably less irenic and harmonic overtones. In its 2015 Taricco judgment[25], the Grand Chamber of the ECJ faced a question concerning criminal offences for VAT evasion in Italy. These offences are often perpetrated through elaborate organizations and operations. Consequently, investigations require a long time and prosecution may become time-barred under the relevant provisions of the Italian Criminal Code, which had been modified by the legislator with a significant reduction of the limitation period. Based upon the rather broad phrasing of article 325 of the Treaty on the Functioning of the European Union (TFEU), the ECJ held that national time limitations should neither prevent effective and dissuasive penalties “in a significant number of cases of serious fraud affecting EU financial interests”, nor provide for longer periods in respect of frauds affecting national financial interests, than in respect of those affecting EU financial interests. The ECJ also added –somewhat unexpectedly– that national courts should verify by themselves if that was the case and, if need be, disapply the domestic provisions regulating the maximum extension of the limitation period in order to allow the effective prosecution of the alleged crimes. According to the ECJ, this would not infringe article 49 of the EU Charter of Fundamental Rights (principles of legality and proportionality of criminal offences and penalties) (ECHR) nor article 7 ECHR (no punishment without law) with regard to pending criminal proceedings. On the one hand, the alleged crimes constituted, at the time when they were committed, one and the same offence and were punishable by the same penalty. On the other hand, the ECJ considered the statute of limitations as a procedural institution. In the ECJ’s view, the extension of the limitation period and its immediate application are not prohibited when the offences have never become subject to limitation.

In Italy, some courts (including the Court of Cassation) did not hesitate to disapply the relevant provisions of national law. Other courts (including a different panel of the Court of Cassation) perceived a complex constitutional problem, concerning article 25(II) of the Italian Constitution (“No punishment may be inflicted except by virtue of a law in force at the time the offence was committed”), with at least two facets: the ECJ had called for an ex post facto increase of criminal liability, as, according to a well-established Italian legal tradition, the limitation period is part and parcel of the substantive discipline of criminal offences (it is the temporal dimension of criminal liability); and the possibility of disapplying the relevant provisions was not only unforeseen and unforeseeable, but also subject to exceedingly vague conditions, incompatible with the certainty required in criminal law. Therefore, questions were addressed at the ICC, which in its turn – while not disputing the ECJ’s construction of article 325 TFEU – asked the ECJ to take into greater account the national principles. The ICC asked if article 325 TFEU requires the disapplication of the relevant national provisions, even in the absence of a sufficiently clear legal basis and when, under national law, time limitations are part of substantive criminal law and thus subject to the principle of legality in criminal matters. The ICC further asked whether the disapplication is mandatory, even when its effect would consist of an infringement on the supreme principles of the national constitutional identity of a member state.

This is a preliminary reference, which, to a certain extent, by itself opens a way for dialogue. The ICC makes some effort to frame national constitutional concerns within EU legal categories (e.g. referencing to Article 4 TEU, and Articles 49 and 53 of the Nice Charter). Nevertheless, by emphatically invoking supreme constitutional principles, the ICC shows itself ready to take a bold stance: activating the so-called counter limits (limits to sovereignty limitations acceptable due to EU law) to interdict the effects of the Taricco judgment on national courts. Much will depend on the answer that the ECJ has been asked to provide urgently. This might be the first time a national Constitutional court challenges the compatibility of EU primary law and ECJ rulings, with fundamental rights and acts to neutralize these rulings.

1) Judgment No. 52 of 2016: Constitutional Guarantees and Political Discretion on Religion

The case concerned a dispute between the President of the Council of Ministers and the Court of Cassation regarding a decision by the latter upholding an appeal brought by an association of atheists which had sought an order requiring the President of the Council of Ministers to launch negotiations with a view to concluding an agreement (similar to a concordat) with it as a religious organization.

The Italian Constitution (Article 8) guarantees equal freedom and the right to self-organization to all religious denominations; but it also provides that their relations with the state may be the object of special legal provisions, based on agreements with religious representatives. The ICC concluded that the decision whether to start negotiations is reserved to executive discretion. The Government can be held accountable for it as a political matter before Parliament, but not before the courts. Therefore, the matter was considered primarily under the separation of powers perspective, though the decision had a significant indirect impact in the field of freedom of religion.

As the judge rapporteur is not the author of the written ruling, presumably the former opposed the final decision, which must not have been taken unanimously: this is the only, indirect way for internal dissent to be manifested outside the Court.

B. Rights and Freedoms

2) Judgment No. 63 of 2016: “Anti-Mosques” Regional Laws

In this case the Court considered a direct application from the President of the Council of Ministers questioning the constitutionality of portions of a Lombardy regional law modifying regional principles for planning facilities for religious services. The claimant alleged that the legislation violated the equal religious freedom of all religious creeds and exceeded the legislative competences of the region. The Court found that the regulation of religious facilities falls within regional competences only to the extent justified by the city-planning-related interest in ensuring the balanced and harmonious development of inhabited areas and realizing services of public interest. In light of the principle that all religious denominations are entitled to equal freedom to exercise their religion, and that opening places of worship is essential to such exercise, the Court stated that neither the denomination nor the presence or absence of a formalized pact with the state may be a source of discrimination between them, and that placing different conditions upon different classes of denominations to gain access to space for religious facilities would exceed regional competences. On these grounds, the Court struck down those portions of the contested provisions that made such distinctions. The Court also struck down provisions requiring newly-constructed places of worship to install video surveillance systems as exceeding regional competences, since the pursuit of safety, public order, and peaceful coexistence is allocated exclusively to the state under the Constitution. Other questions were considered unfounded or inadmissible.

3)Judgment No. 76 of 2016:Stepchild Adoption by the Same-Sex Partner

In this case the Court order a referral order concerning the 1983 Law on the minors’ right to family. The questioned provisions allegedly impeded a case by case evaluation concerning the recognition of stepchild adoptions within the context of same-sex marriages validly celebrated abroad. In the referring judge’s view, as same-sex marriages celebrated abroad did not have any effect in the Italian legal system, the decision determining a stepchild adoption may not have been recognized, without any consideration of the minor’s interest. The ICC declared the constitutional questioned inadmissible, as the referring judge failed to identify the correct legal basis of the case. In fact, the recognition of foreign judicial decisions on the adoption of minors may follow two distinct procedures. According to a first one, recognition occurs automatically. According to an alternative procedure, recognition occurs only after a Court’s assessment. In the ICC’s view, the referring judge did not provide a convincing motivation of the fact that the case at issue was not subject to the first (automatic) procedure of recognition. On the contrary, the referring judge contradicted himself, firstly referring to the automatic recognition procedure, then referring to the necessity of a Court’s assessment. In the ICC’s, this contradiction was based on the wrong assumption of the referring Court that the case at issue consisted of an adoption by Italian citizens of a foreign child (so-called international adoption), while the case actually involved the recognition of a foreign court ruling, determining the adoption of a foreign child by a foreign citizen, who only subsequently acquired the Italian citizenship.

4) Judgment No. 84 of 2016:Scientific Research on Embryos

In this case the Court heard a referral order concerning the 2004 Law on medically assisted reproduction, in which it was requested to rule that embryos that were destined to be destroyed (as they would not be implanted, where affected by disease) could be used for scientific research, notwithstanding the statutory prohibition on such usage. Relying on ECtHR case law, the Court noted that there was no pan-European consensus on such a sensitive issue and dismissed the application, holding that “the choice made by the contested legislation is one of such considerable discretion, due to the axiological issues surrounding it, that it is not amenable for review by this Court”.

In this case, the Court considered a referral order challenging the constitutionality of the denial of certain social security benefits to non-married partners. The provisions at issue entitled spouses and close relatives of severely disable people to a parental leave. The referral order claimed that the law was unconstitutional, as long as it did not include more uxorio partners among the beneficiaries of the right to parental leave. This exclusion allegedly violated inviolable human rights, the principle of equality and the right to health (Articles 2, 3 and 32 of the Constitution). The ICC struck down the omission of the more uxorio partner from beneficiaries as unconstitutional, thus extending the parental leave right recognition to them. The Court affirmed that even though more uxorio cohabitation and marital relationships are not fully equivalent, it is unreasonable in the case at hand to exclude the former from the beneficiaries of parental leave rights. In the light of the legal goods protected by the norm, and namely the fundamental right to health care of disabled persons within the context of social communities recognized by Article 2 of the Constitution, it is contradictory to exclude more uxorio partners from a provision, aiming at protecting the disable people right to health.

6) Judgment No. 225 of 2016 – The Rights of Children in the Separation of Same-Sex Couples

In the case, the referring Court alleged that the contested provisions of the Civil Code regulating parent–child relationships, as modified in 2013, violated the Constitution, as long as they did not allow the referring Court to evaluate on a case by case basis whether it mirrors the interest of minors to maintain a significant relationship with the former partner of the biological parent, within a same-sex couple. The ICC dismissed the case as unfounded, since the referring judge failed to consider a provision of the Civil Code that could offer adequate protection to the interest at issue. In fact, article 333 of the Italian Civil Code allowed the taking into consideration of behaviors that are detrimental to the interest of the child, such as any unjustifiable interruption (imposed by one or both parents) of any significant relationship of the child with third persons. In these cases, judicial authorities are entitled to adopt any suitable measures on a case-by-case basis at the initiative of the public prosecutor, who could possibly be requested to act by the subject that was involved in the unjustifiable interruption of a significant relationship with the minor. The ICC found that there was no legislative vacuum, and that the legal position of the former partner may be adequately protected through these legal arrangements, which the referring judge failed to consider.

7) Judgment No. 286 of 2016 – In the Mother’s (Sur)name

In this case, the ICC declared unconstitutional several provisions of the civil code, insofar as they did not allow the parents, by mutual consent, to attribute to their children at the moment of birth the maternal as well as the paternal last name. The Court had already heard very similar referrals approximately thirty and ten years earlier: at that time, the Court firstly found that a modification of the contested norms was “desirable” and probably in line with social conscience (decision No. 176 of 1988) and then declared that the contested provisions were not in line with the Constitution, but nonetheless it was in the legislator’s political discretion to adopt one of the many legislative solutions that might be compatible with the Constitution (decision No. 61 of 2006). In 2016, ten years after the latter decision, the legislator had not intervened yet, and the ICC finally held that the voided legal provisions violated the child’s constitutional right to his or her own personal identity and the constitutional right to equal dignity between parents and spouses. Moreover, the ICC relied on article 8 (right to respect for one’s private and family life) and article 14 (non-discrimination) of the ECHR, and on the relevant case law of the ECtHR, which had recently declared that the obligation to transmit only the father’s name was in violation of the ECHR (Cusan and Fazzo v. Italy, App.no. 77/07, 7 January 2014). As a result of the ICC’s decision, parents may agree to add the maternal last name after the paternal last name to their child’s name, at the moment of birth or adoption. However, in the absence of an agreement between the parents, the existing provisions related to the attribution of the paternal last name remain applicable, in expectation of a legislative intervention destined to regulate the matter comprehensively, in accordance with criteria eventually compatible with the principle of parity.

C. Foreign, International and/or Multilateral Relations

8) Judgement 102 of 2016: Ne Bis in Idem 1

One of the most controversial aspects of the ECHR implementation in Italy concerns the different notions of “criminal matter” adopted by each system: narrower in Italy, broader in Strasbourg. A number of questions stemmed from this very significant divergence.

In Judgment n. 102 of 2016, the Court heard two referral orders, from criminal and tax divisions of the Court of Cassation, concerning the punishment of the illegitimate use of nonpublic financial information with both criminal, and administrative sanctions, allegedly in violation of the ne bis in idem principle (ECHR Protocol 7, article 4). All the questions were found inadmissible, for various reasons: most notably, because, although a double line of punishment may be in breach of the ECHR (if a formally administrative sanction is substantially afflictive), it is up to the legislator to settle the issue by making the appropriate choices, also taking into account the fulfilment of obligations under EU law. This may include keeping both criminal and administrative sanctions, while unifying or coordinating existing investigation and punishment procedures.

9) Judgement 193 of 2016: Lex Mitior

The Court heard a referral order concerning administrative sanctions for the violation of labor law: their unusual severity had been mitigated by a subsequent law, but only after they had been definitively applied to the party; the question was whether the Constitution and the ECHR require the subsequent and more lenient law (lex mitior) to prevail also over res judicata. The question is unfounded: while in the abstract the lex mitior principle may apply to administrative sanctions, the question should focus on single sanctions, and on the specific norms governing them, in order to assess their afflictive character; not –as it was the case– on the general norms applicable to all administrative sanctions, as some of them might fall beyond the scope of constitutional and ECHR guarantees.

10) Judgment No. 200 of 2016: Ne Bis in Idem 2

In this case the Court heard a referral order concerning a provision of the Code of Criminal Procedure which limits the applicability of the ne bis in idem principle to the same legal fact as regards its constituent elements (idem ius), rather than to the same historical fact (idem factum), with the result that the criteria for establishing whether the fact is the same are more restrictive under Italian law (which considers both legal and material elements) than under the ECHR (which only considers material elements). The Court ruled the legislation unconstitutional insofar as it did not provide that the applicability of the ne bis in idem principle must be assessed with reference to the same historical-naturalistic fact, albeit considered with reference to all of its constituent elements (conduct, event, causal link). Italian law must base its assessment on the idem factum, and has no scope under idem ius.

11) Judgment No. 275 of 2016: Concept of Punishment in National Law and the ECHR

In this case the Court considered several Referral Orders on the 2012 law providing for the suspension of officials elected in local and regional bodies, when they are found guilty, although not definitively, of certain offences (and also prohibiting, in the same cases, to run for office). This also applies when the offences where committed before 2012. Many questions were raised, and all were found inadmissible or unfounded. Some points are particularly relevant: for the ICC, the effects of the questioned norms cannot be constructed as a ‘punishment’, neither under Italian constitutional law, nor under the article 7 of ECHR and the ECtHR case law (analyzed in detail by the ICC); rather, they are precautionary measures, aimed at preventing illegality in public administration[26], and at enforcing the constitutional duty of citizens entrusted with public functions “to fulfil such functions with discipline and honor” (article 54 of the Italian Constitution); therefore, these measures may take into account also previous offences and convictions, in barring access to (and permanence in) office. The ICC analysis is especially significant, as it dwells on issues which will be considered in the upcoming Strasbourg judgment on the (partially similar) Berlusconi case[27].

12) Judgment No. 225 of 2016 – The Rights of Children in the Separation of Same-Sex Couples

In the case, the referring Court alleged that the contested provisions of the civil code regulating parent-child relationships, as modified in 2013, violated the Constitution, in the parts where they did not allow the referring Court to evaluate on a case by case basis whether it mirrors the interest of minors to maintain a significant relationship with the former partner of the biological parent. In the case at hand, the former partner was part of a same-sex couple. The referring judge claimed that the contested provisions violated several constitutional provisions: the recognition of “social communities”, including same-sex partnerships; the principle of equality and reasonableness, as the contested provision discriminated children born from a heterosexual union from children born within the context of a same-sex union; and finally the constitutional reception of international obligation with regard to the protection of child-parents relationship and the ECHR, and in particular of Article 8. The ICC dismissed the case as unfounded, as the referring judge failed to consider another provision of the civil code (i.e. Article 333) that could offer adequate protection to the interest at issue. In fact, Article 333 of the Civil Code considers unjustifiable interruptions (imposed by one or both parents) of any significant relationship of the child with third persons possibly detrimental to the interest of the child. In these cases, judicial authorities are entitled to adopt any suitable measures on a case by case basis at the initiative of the Public Prosecutor, who could possibly be requested to act by the subject who was damaged by the unjustifiable interruption of a significant relationship with the minor. The ICC found that there was no legislative vacuum and that the legal position of the former partner may be adequately protected through these legal arrangements, which the referring judge failed to consider.

V. Conclusion

Fifty years after the publication of John Henry Merryman’s series of articles on the “Italian style”[28] in comparative law, the ICC stays true to this peculiarity. In particular, its attitude in the European constitutional space assumed a characterizing stance of active participation in the so-called judicial dialogue. This active participation consists of a continuous engagement with both the ECJ and the ECtHR case law. Even though the general trend of the ICC engagement has been a collaborative one, the Court has not missed any opportunity of remaining true to its own interpretation of the Italian constitutional tradition. This attitude towards supranational and international “relationality”[29] is a recent development in the Court’s attitude towards the globalization (and, in particular, the Europeanization) of constitutional adjudication. In particular, as to relations with European Courts, the ICC has significantly changed its stance over time. Firstly, the Court opted for a sort of institutional isolation. Subsequently, it turned its attitude into an informal and silent interaction with European Courts. Only recently, the ICC adopted a truly relational attitude, which was dramatically developed in its case law in 2016. On the one hand, many of the reported judgments rely on the European courts’ case law and make a proactive effort to ensure the highest level of compliance with EU law and with the ECHR[30]. On the other hand, when it came to the core values of the constitutional identity of Italy, the ICC openly embraced a distinct position from the one of the ECJ. By submitting a reference for preliminary ruling, the opportunity arose for further collaboration with the ECJ.[31] Consequently, some distinctive features of the national legal order might become elements for common values in a system fostering pluralism. Only the future will tell if this invitation to cooperate will be taken up by the ECJ. As to the present, the attitude of the ICC toward supranational and international law should be evaluated and considered by taking into account this complex and articulated picture. This effort may help to overcome the scholarly temptation of focusing on a single judgement (or a single line of a single judgment), and thus missing the woods for the trees.

[8] This judgment was not only the first decision of the Court, but also one of its most important: the Court affirmed both its authority and the normative value of the Constitution itself, by rejecting the assumption that the notion of “unconstitutionality” was only applicable to legislative acts enacted after the Constitution, and inapplicable to those enacted before it. Furthermore, the ICC rejected the distinction between prescriptive norms and norms that have programmatic value, stating that the unconstitutionality of a legislative act may derive from programmatic norms. See on this judgment, Barsotti and others (n 3) 30.

* The ICC provides some official full-text translations of its decisions. These translations are available at the ICC official website: http://www.cortecostituzionale.it/actionJudgment.do. The following summaries rely on official translations, where available.

Tread softly because you tread on my dreams
–W.B. Yeats, The Cloths of Heaven

Recent weeks have seen the biggest mass protests in Poland since 1989. In major Polish cities thousands were out in the streets and made their voices heard. People were protesting against the relentless capture of their public institutions, most notably the courts.

The brutal assault on the Supreme Court and the judiciary sparked the popular revolt, forcing President Duda to veto the draft laws on the Supreme Court and the National Council of the Judiciary (on the legislative scheme to bring the judiciary to heel, see here). This public defiance was not spurned by the opposition parties that suffer from their own credibility issues.

What should we make of this popular mobilization after two years of relentless capture and accompanying passivity of the citizenry? These protests were apolitical and political at the same time, creating a synergy not seen in Poland (or even in this part of Europe) for years. Something constitutionally momentous may be happening: a constitutional moment in the defense of the Constitution and the integrity of the legal system. As such, it forces constitutionalists in Poland to move beyond mere textual exegesis and to focus more on the constitutional context. The former has always been the dominating feature of constitutional analysis, yet it is an inadequate tool to explain what has happened in Poland over the last weeks. It is the latter–context–that will will help us start connecting the dots to understand the forces behind the protests.

The context is defined here as constitutional fidelity to the values underlying the constitutional document. My argument here is that constitutional fidelity provides the conceptual framework for thinking of the rule of law and separation of powers, appreciating it, and in the end defending it, at times of constitutional capture and paranoia.

Constitutional fidelity is more than a duty and an obligation to observe the text. As Jack Balkin explains, constitutional fidelity:

[i]s not simply a matter of correspondence between an idea and a text, or a set of correct procedures for interpretation. It is not simply a matter of proper translation or proper synthesis or even proper political philosophy. Fidelity is not a relationship between a thing and an interpretation of that thing. Fidelity is not about texts; it is about selves.[1]

Being faithful to the document and the institutions it creates is more a state of mind than mere practice. As such constitutional fidelity has a lot in common with constitutionalism which is not only about the document, but rather about limited government and a culture of restraint.

Fidelity can refer to the original meaning of the constitutional document, to its fundamental core or to the text as such. It can also speak to the principles and concepts embedded in the Polish constitutional structure and tradition–principles that make up our constitutional identity.

Fidelity thus has the potential to illuminate who we once were, where we came from, where we are headed and finally also who we are today. Each constitutional document has its past, present and future and these three temporal dimensions are linked by underlying principles of values.

Principles and values that make up our constitutional identity must be interpreted so as to ensure both continuity and durability. What is needed is the compromise and equilibrium between necessary change that embraces the new and the stability that caters to tradition. The latter enables us to move forward and set our gaze on the future while not forgetting about the past and about the places we come from. In other words constitutional interpretation must be both conservative (preserving values) and reformative (reading these in the light of ever-changing circumstances). This understanding of fidelity underscores the aspirational function of our constitutional document. It aspires to reflect “us” in the best, but not the perfect, way. It aspires to capture this reflection, and yet it will never achieve this goal since “we” change and evolve along with the document. Most importantly, then, constitutionality fidelity provides a conceptual framework to understand the forces and emotions behind the mass protests that we have recently witnessed in Poland.

Fidelity as Pacting

The preamble to the Polish Constitution shows the commitments to which Polish nation aspires. The Constitution’s commitments have not been yet met. This neverending link between the past and the future is the basis of pacting, which must be undertaken by each generation. Each has its own distinctive role to play in spelling out what the constitutional pact mandates today.

It is in this sense that the constitutional fidelity is about generational reading of the document. It is not about uncritical iconoclasm. It is through pragmatic recognition that our constitutional allegiances are shaped, reshaped, reexamined as we move forward and as the world around the constitution changes and fluctuates.

The past, as Balkin and Siegel write, must be used in a constructive way: “We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled.”[2]. Each generation should build on the best of its past.

My Courts and My Constitution

All of this takes on special importance in our times of constitutional humiliation, with the Polish Constitution under systemic attack. That is why the defiance to our public institutions must be read in the light of more general recent trend of professing the allegiance to the Constitution by various quarters of Polish society. It not only affects the meaning and direction of the Polish Constitution, but also impacts its very survival. Our fidelity to the Constitution should be an expression of loyalty to the great moments of our history and the past that have been marked by plurality of voices and respect for the Other in the best Polish tradition of openness and tolerance.

The 1997 Constitution is only part of this tradition. The rule of law, democracy, freedoms and rights, a well-functioning system of judicial protection, a constitutional court with a strong record of human rights protection are all built on the tradition of limited government, separation of powers, the centrality of the individual and respect for the self -imposed rules that had been a staple of Polish constitutionalism.

As we move forward, the challenges are many, and ready answers few and far between.

We are entering the constitutional terra incognita as the citizenry is faced for the first time post-1989 with a tall order of bottom-up, rather than dominant top-down mobilisation.

Let us appreciate that this time around, when the fate of the entire Polish judiciary is on the line, the narrative has changed dramatically from the popular passivity that accompanied the demise of the Polish Constitutional Court to the recent protests in the country.

To understand this new popular engagement, we must read the moment through the prism of constitutional fidelity. As we continue to rediscover our fidelity, the present generation of Poles has a special responsibility to balance the past and the future against the present dangers to the very survival of our constitution.

Make no mistake. Polish democracy and the rule of law will not be saved by the European Commission enforcing European values against yet another rogue government or by lawyers, no matter how many, coming together. The rescue package must come from within as an expression of our constitutional fidelity. After all, “fidelity is servitude indeed. But this servitude is not so much something the Constitution does to us as something we do to ourselves in order to be faithful to it.”[3]

With their vociferous protests, Poles have at least started doing something to themselves in order to remain faithful to their constitutional document. This is only the beginning, though. As important as this popular constitutionalism has been in recent weeks, a word of caution is in order. Bearing in mind the not-so-distant popular indifference to the dismantling of the Polish Constitutional Court in 2015 – 2016, the big question is whether “We Poles” will sustain the effort we have begun.

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features Vlad Perju, Director of the Clough Center for the Study of Constitutional Democracy and Professor of Law at Boston College Law School. His full bio follows below:

Vlad Perju is the Director of the Clough Center for the Study of Constitutional Democracy at Boston College and Professor of Law at Boston College Law School. His primary research and teaching interests include the law of the European Union, comparative constitutional law and theory, international and comparative law and jurisprudence.

Before joining the Boston College faculty in 2007, Perju was awarded a doctorate from Harvard Law School under the supervision of Professor Frank Michelman with a dissertation entitled “The Province of Cosmopolitan Jurisprudence: Constitutional Foundations”. He earned two law degrees from the University of Bucharest and the University of Paris 1 Panthéon-Sorbonne, an LLM degree summa cum laude from the European Academy of Legal Theory in Brussels, Belgium and graduated from the LL.M. program at Harvard (degree waived). While at Harvard, he served as a Byse Fellow, a Safra Fellow at the Edmond J. Safra Foundation Center for Ethics and a Research Fellow in Amartya Sen’s Project on Justice, Welfare and Economics.

Perju was a Visiting Associate Professor at Harvard Law School in the Fall Term 2011 and a Visiting Professor of the Theory of the State at the European Academy of Legal Theory in Brussels, Belgium.

In 2008 Professor Perju was appointed by the President of Romania to a seven-member Commission on Constitution Reform. He remains actively involved in the process of constitutional reform both in Romania as well as in the European Union. Some of his commentary can be found here (in English) and here (in Romanian).

At Boston College, he teaches courses in the Law of the European Union, American and Comparative Constitutional Law, The Past and Future of the State, as well as advanced seminars on European Integration and Modern Legal Theory.

1. Tell us about something you are working on right now.

Two projects. The first develops a doctrine of transnational structural norms in constitutional law. The context for this project is the erosion of constitutional democracy and my question is how the judiciary could use this new doctrine to protect the integrity of structural features such as judicial independence through reliance on their transjurisdictional dimension. The second project revisits the traditional understanding of supremacy of EU law. Existing accounts conceptualize supremacy as necessarily bidirectional, in the sense that the reception of EU supremacy within national jurisdictions is not external but constitutive of the claim to supremacy itself. I have serious doubts about the soundness of this approach, both normatively and descriptively. This paper is the third installment in my larger attempt to revisit some of the fundamentals of European constitutionalism. Another work, which I completed this summer, argues that human rights were present at the genesis of the European legal order, and thus did not enter European constitutionalism from municipal law, as the influential and self-serving account of the German Constitutional Court would have us believe. The other paper challenges Habermas’s influential theory of dual sovereignty in the EU as too deferential to nation-states and insufficiently attuned to the constitutional project of European unification.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I write when I’m ready to write. Unless, of course, life has other plans. And, having small children, life frequently does have other plans. When that happens, I write whenever I find time. I should add that it was helpful for my writing once I realized how my various projects fit together.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new?

As the director of the Clough Center, which is an interdisciplinary center at Boston College, I have to be alert to new scholarship across fields. This means that my reading list is somewhat eclectic, more so than one would typically expect even from a comparative con law scholar. I can tell you that right now, for example, I’m reading recent work on the Russian revolution for a program we’re putting together this Fall, as well as Andrea Sangiovanni’s Humanity without Dignity, Daniel Ziblatt’s recent book on conservative parties and the origins of democracy.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

It’s hard to mention just one. Kant’s Perpetual Peace is a great example of putting what at the time was a bold vision of cosmopolitanism to the discipline of reason. Roberto Unger’s 1976 lectures in social theory at Harvard have also been formative, as has engagement with John Rawls’s Theory of Justice and Political Liberalism–each for different reasons. Finally, I had the good fortune to be Frank Michelman’s doctoral student, and learned from him and his scholarship the indispensable lesson of intellectual integrity in scholarly work.

5. What are some of the big questions ripe for inquiry in your area of research interest?

In European legal thought, we need to challenge the consensus around constitutional pluralism. In comparative constitutional law, we need to draw more on the venerable traditions of comparative private law as sources of insight, especially–but not exclusively–on methodological matters. Finally, in constitutional law more generally, especially in the United States, we need to offer institutional proposals and to defend the theoretical foundations of cosmopolitan alternatives to constitutional nationalism.

Samoa recently amended its constitution to declare itself a Christian state. For some, this was a curious move given that Samoa’s preamble already proclaims Christianity as the national religion. Why, then, was the amendment necessary? A recent article explains:

Samoa already had a reference to Christianity in the preamble to its Constitution, which declared that the Samoan government should conduct itself “within the limits prescribed by God’s commandments,” and that Samoan society is “based on Christian principles.” … However, a preamble to a constitution is generally seen as a broad symbolic national statement, one of historical or cultural significance, rather than a legislative tool. What Samoa has done is shift references to Christianity into the body of the constitution, giving the text far more potential to be used in legal processes.

Samoa’s Christianity amendment draws our attention to the purpose and authority of constitutional preambles. Are they simply lofty words–a siren song of constitutions–without real world effect, or do they have a meaningful impact on the legal and political orders of any given jurisdiction?

In their new book on Constitutional Preambles: A Comparative Analysis (Edward Elgar Publishing Ltd 2017), Wim Voermans, Maarten Stremler and Paul Cliteur invite constitutional scholars to think more deeply about preambles. They examine roughly 200 preambles from around the world in an effort to enhance our traditional understanding of preambles. In their own words:

Preambles deal with beliefs and try to instill them in heads and hearts of the people. Not only do they deal with the commonly held beliefs, but also, and especially so, with the individually held ones. As siren songs, preambles try to connect the imagined ideals and beliefs of the constitutional world with the individual’s world. (p 151)

However preambles may also serve functions that extend beyond these declarations of principles devoid of legal power. For instance, the authors explain that although in the United States the preamble “cannot be considered as an independent source of law … . In France, by contrast, the Constitutional Council has declared the preamble to be an integral part of the constitution and has used it directly to review the constitutionality of legislation.” (p 4)

The authors show also that preambles are sites where designers have formally entrenched fundamental principles, others serve a distinctly expressive function related to values or identity, and still others may serve an educational function as a “bridges in time” connecting the present to the historical context from which the constitution emerged.

As new states establish constitutions and existing ones reform their own, this new book reminds us that “all preambles indicate, in one way or another, the source of authority of the constitution.” (p 153)

In their new book, Voermans, Stremler and Cliteur shine a light onto an often overlooked aspect of constitutional study and lay a strong foundation for further research into the forms and functions of constitutional preambles.

As incredible as it seems, it was not until 1971 that the U.S. Supreme Court ever declared a statute that discriminated against women as unconstitutional. That was Reed v. Reed, 404 US 71. A co-author on the brief for the Appellant is the now U.S. Supreme Court Justice Ruth Bader Ginsburg. In her brief, she included two West German Constitutional Court decisions from 1959 and 1963 in which the German Court invalidated similar gender classifications. As she explained about her strategic choice to include these two West German constitutional law case in a brief to the U.S. Supreme Court: “I did not expect our Supreme Court to mention the German decisions, but thought that they might have a positive psychological effect. Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: ‘How far behind can we be.’”[1]

The 553 page Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series, edited by Helen Irving of Sydney Law School, is a tool that can be used by scholars and practitioners to employ Justice Ginsburg’s approach. Constitutions and Gender is the first handbook devoted specifically to gender and constitutions. Based on the premise that constitutions are “gendered” (to include having a disparate or differential impact upon women and men, be it through the writing, interpretation, application, and/or internalization of constitutions), the handbook articulates original thinking that will serve as a platform for future transformative scholarship as well as constitutional law practices. This book tackles tough questions, to include that of “culture” and “freedom of speech” – do they trump, are they subordinate, or can they be harmonized? The analysis employed throughout Constitutions and Gender suggests that we must ask and challenge, for example, “who gets to state what culture is.” The comparative law analysis indicates that effective approaches to grappling with the challenges of changing technology (that includes the lightening fast spread of gender hate speech) are still to be developed.

Part I addresses Constitution-Making. Its contributors explore questions such as what is the effect when women are not excluded from participation in the process of making constitutions, what is the outcome when gender exclusionary clauses are removed from constitutions, and what the impact of the international community support is/can be, to include regional (such as the EU) and international (such as the UN) governmental and non-governmental (such as IDEA – International Institution for Democracy and Electoral Assistance) entities.

Part II reviews Constitution Design. Its contributors address the relationship between national constitutions and international conventions, explore how “gender” interacts with federal constitutional design (for example, in the U.S., 20 states have constitutions containing an equal rights amendment whereas the U.S. Constitution does not), and examine an existing design tool (the Constitution Assessment for Women’s Equality) while analyzing its potential as well as its limitations for gender equality.

Part III explores Constitutional Practice. Its contributors address national and regional constitutional interpretation as well as ask why a Justice Ruth Bader Ginsburg proposal of having women as one hundred percent of judges is controversial (whereas an all-male or majority male bench is not). It explores whether the experience of being a woman or a man makes a difference in how laws are interpreted and created.

Part IV examines Constitutions and Citizenship. Its contributors address issues such as whether democratic legitimacy is undermined by the unequal participation of women; the status of constitutional recognition of indigenous women to include ensuring that their rights are not abrogated due to privileging groups that exclude women and women’s rights; and gender-based striping of constitutional citizenship, with its accompanying issues of statelessness.

Part V articulates Constitutional Challenges. Its contributors address how particular constitutional choices provide a plural legal system (to include religion-based courts) that is committed to gender equality, varying State constitutional court approaches to framing reproductive rights, whether there is or needs to be a tension between restrictions on/freedom from gender hate speech and pornography and freedom of expression/speech, what are the state obligations to providing for its citizens and what are the constitutional mechanisms for claiming women’s social and economic rights, and, in a patriarchal analysis of unwritten and written constitutions, how gendered arguments influenced constitutions and their drafting (for example, Japan’s 1889 Meiji Constitution restricted the Imperial Throne to male descendants despite women having served as empresses of Japan).

Gender and Constitutions is invaluable in addressing “How far behind can we be” as well as providing insights, through its comparative law analysis, to approaches that have proved successful in being “less behind.” To move beyond being less or more behind, the handbook provides analytical constitutional frameworks that can be utilized by scholars and practitioners. This is a book to mark-up, to tab, to have within an arm’s reach to consult again and again. Looking forward, given that the subject matter of constitutions and gender is too immense to be contained in a single handbook, it is my hope that the publisher, Edward Elgar, will use this handbook as a basis for publishing a series titled Research Handbooks in Constitutions and Gender. The issues are numerous, to include those of sex-selective abortions, gender-based freedom of movement (such as the legal and actual inability to travel absent permission of a “guardian”), religion-based-gender-based employment exclusions such as to priesthood, gender-based denial of access to places of cultural heritage, and constitutional rights of transgender individuals (as of the date of writing this review, transgender individuals are facing possible expulsion from the U.S. military).

In his post on this blog, Adam Perry writes that the British cases on what areknown in the UK as constitutional statutes (and in Canada as quasi–constitutional statutes) “have been very controversial in constitutional circles”, whereas,by contrast, “the Canadian cases caused barely a ripple.” I would like here to take up the invitation, and to throw a tiny pebble intothe lake.

Elsewhere — in a chapter on whether Quebec may adopt a “written constitution” for a book building on work presented at asymposium convened at Yale by Richard Albert —Iincidentally develop anargument about quasi-constitutional statutes in Canada.

My main argument is that the only way to enact formal constitutional provisions that are part of the supreme law, so that they may invalidate ordinary ones, is to use one of Canada’s special constitution-changing procedures, which are different from and more demanding than the ordinary process of enacting a statute by an exercise of ordinary legislative power.These special procedures are entrenched in sections 35.1, 38–43, and 46–48 of the Constitution Act 1982. It is worth notingthat, whereassection 35.1 isnot included in Part V, titled “Procedure for amending Constitution of Canada” but is nonetheless part of that procedure, other sections which are included in that Part, among them section 45, pertaining to “laws amending the constitution of the province”, arenot. To summarize, my generalthesis is that, in accordance with the “unwritten” principle of parliamentary sovereignty, both the federal parliament and provincial legislatures may probably not legally bind their successors or even themselves, even by (true) “manner” or “form” requirements, the meeting of which the validity of subsequent legislation would be conditional upon. My point is that the limited range of so-called “manner and form” requirements (from ordinary legislation) that are permissible under Canadian constitutional law using ordinary legislation should be understood as statutory interpretation rules, in the sense of rules allowing actors to resolve inconsistencies between enactments of a same legislature, and not as conditions for legal validity. This is where the idea of “quasi–constitutional” statutes becomes relevant.

Indeed, express protection against implied repeal, or a primacy clause providing for an exception if a subsequent statute expressly states that it is intended to apply notwithstanding that clause or its including act, is commonly regarded as a “form requirement” (G. Carney, 1989, at 72). Such protections are found in Canadian law, notably in federal and provincial human rights legislation. There seems to be no doubt about their constitutionality, but I think they are mischaracterized as “form requirements”, and, more importantly, that they donotamount to conditions of validity, but only of operation.

I also think that they are in part superfluous. Regardless of how such protection clauses may vary across statutes, and whether any type of these so-called “form requirements” are to be found at all, Canadian case law has recognized that certain statuteshave “quasi–constitutional” status,the effect of whichremains unclear. This special statusisbased on the perceived special importance of their contents.It was judicially conferred on human rights legislation as well as statutes concerning language rights, citizenship, access to information and privacy, and the right to a clean environment.

Whenwe limit the analysis to federal and provincial human rights acts, we first notice that three acts, the Canadian Human Rights Act, the Human Rights Act of New Brunswick, and that of Nova Scotia,do not contain anyprotection clauses against implied repeal. Secondly, we note that among the nine remaining acts, whichdo contain such provisions, three of them donot expressly make a “form requirement” but only state a primacy rule. These are theBritish Columbia Human Rights Code (s. 4),Newfoundland and Labrador Human Rights Act(s. 5), and Prince Edward IslandHuman Rights Act(par. 1(2)). In order to illustrate this point, we contrast section 52 of the Quebec Charter of Rights and Freedoms with section 5 of the Newfoundland and Labrador Human Rights Act. The former reads: “No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.” The latter simply reads: “This Act shall take precedence over other Acts where they conflict with this Act whether those Acts were enacted before or after this Act comes into force.”

Most primacy clauses, whether they are followed by a “form requirement” or not, derogate expressly from the common law principle lex posterior derogat anterior. In all likelihood they implicitly derogate from other common law interpretation principles as well, such as lexspecialisderogatlegigenerali (Heerspink, 1982, at 158, Lamer J).The point is, despite the pronouncements of the Supreme Court of Canada(Canada Assistance Plan reference, 1991, at 563),clauses that protect against implied repeal or amendment arenot “form requirements” for the validity of subsequent legislation. Rather,they aid statutory interpretation in the case of inconsistencies.

Notwithstanding the language found incase law and commentary, I think it is simply as such that they are accepted in Canadian constitutional law. This is why I am of the opinion that the express “requirement” of express repeal or amendment by a protection clause is superfluous, quite asidefrom the question of whether they speak the truth. In other words, a clause such as section 4 of the BC Human Rights Code, which simply states “If there is a conflict between this Code and any other enactment, this Code prevails”,has a very limited (positive law) “legal truth” value.

But it is not only provisions like section 4 of the BC Human Rights Code, or section 5 of the NFL Human Rights Act, or paragraph 1(2) of the PEI Human Rights Act that do not convey much legal truth, but also the “quasi–constitutional status” doctrine. As I said, this doctrine applies according to the substance of a statute, regardless of possible protection clauses let alone their specific wording. In addition to their exceptional precedence over other formally ordinary laws that donot constitute a “clear legislative pronouncement” (Craton, 1985, at para 8) of their repeal or amendment, quasi–constitutional statutes are supposed to be interpreted liberally, so that the obligation incumbent upon judges to construe them so as to reconcile them with other statutes, should,as far as possible, work in their favour. (For a codified example of this interpretation principle, see section 2 of the Canadian Bill of Rights, and, in a comparative perspective, see also section 3 of the UK Human Rights Act 1998, as well as Alison L. Young’s article.)However, in Canada at least, even this is theory. In practice, sucheffectsare not always certain (Thibodeau, 2014, and Leonid Sirota’s post).

To recapitulate: In Canada, statutes that have judicially been recognized as having a “quasi-constitutional” status do not always include provisions of the type considered to be a “form requirement”.When they do, this status is arguably a mischaracterization. Even when properly understood as a derogationfrom general statutory interpretation rules relating to the resolution of inconsistencies between enactments of a same legislature, quasi-constitutional status, as a matter of practice, has uncertain legal effects.